Litigation and trial practice

I talked the other day about a recent book from the University of Chicago Press: Rights on Trial: How Workplace Discrimination Perpetuates Inequality. See my poor post here. The authors went to federal records and interviewed individual plaintiffs to study how well discrimination lawsuits achieve the simple aim of rectifying discrimination in the workplace. The authors included Ellen Berrey, professor of sociology, Robert L. Nelson, research chair in the legal profession and professor of sociology, and Laura Beth Nielsen, professor of sociology. See my prior post here in which I discuss the success rates of plaintiffs in various types of discrimination lawsuit.

The authors also looked at the process of simply finding a lawyer. One in four discrimination claimants do not find a lawyer. Rights, at p. 109. They found that African-American plaintiffs suffer disproportionately when looking for lawyers. Finding a lawyer is important. Without a lawyer, the chances that a case will be dismissed is about 59%. With a lawyer throughout the process, the chances of dismissal are about 12%. Rights, at 112.

The authors note correctly that finding a lawyer who practices employment law is time consuming. Persons who have just lost their jobs are strapped for time as it is. Add to that the possibility that the terminated person has children, perhaps a spouse with a disability, and it becomes almost impossible to find the time necessary time to look for lawyers. Finding employment is paramount, after all.

Some plaintiffs reported they were asked to pay for a lawyer, one was quoted a fee of $500 and one a fee of $2700. Recognizing that the potential plaintiffs did not complete understand the lawyer selection process, the authors interviewed some 20 plaintiff lawyers, ranging from sole practitioners to large firms and pro bono lawyers. The lawyers estimated they accepted less than 10% of the cases that came to their doors. They all generally focused on how a case would “play” to a jury or judge. As I do, these lawyers looked for clients who seemed more serious about their allegations. Rights, at p. 122.

One long-time lawyer reported that he looked for clients who were not “accusatory” or “whiny” doing the first meeting. The importance of the first meeting looms large in the decision of most lawyers regarding whether to accept a case or not. All the lawyers preferred clients who seemed to be prepared for a lawsuit, with documents on hand. Rights, at p. 124. The lawyers generally operated on a contingency basis with some fee paid up front. Some relied on a payment plan from the client. One lawyer mentioned that there needed to be a certain amount of lost pay at stake before he would accept a case. He sought wage earners of at least $36,000 per year before he would consider such a case. Rights, at p. 126.

In the end, the authors found only some 10% of plaintiffs find lawyers. Criteria for a case being accepted included client’s truthfulness, demeanor, and work ethic. Also important was a complicated formula seeking significant amounts of lost pay at stake. Rights, at p. 128. All I can say is “yep.”

Ummmmm, no. Don Trump. Jr. has claimed attorney client privilege in refusing to answer questions about a conversation he had with then Candidate Trump in 2016. There was a meeting at Trump Tower in June 2016 between Donald Trump, Sr., Donald, Jr., and a lawyer. Early on, Donald, Jr. said it was a brief meeting between just the three of them. Now, it turns out there were eight folks present, including Paul Manafort and Jared Kushner. Now we know the meeting occurred only because Donald, Jr. expected to receive dirt on Hillary Clinton from Russian operatives. Donald, Jr. refused to answer questions about the meeting, citing attorney client privilege. He was appearing before the House Intelligence Committee, this week. See Politico report.

There are a few problems with his claim of attorney client privilege. First, he is not a lawyer. The attorney is bound by the attorney client privilege, not the client. The client, assuming it was Donald Jr. (but it would have been any of the eight persons in the room), can say whatever he wishes about what was said. Second, when a second person is in the room – in addition to the lawyer – then the attorney client privilege is waived. It is gone. It does not exist. If you as a client allow a second person to hear what you have to say to your lawyer, then you have waived the attorney client privilege. The point of the attorney client privilege is to ensure free flow of communication from the client to the lawyer, not the other way around. The client can share what he said to his lawyer anytime.

That Donald, Jr. would cite a bogus privilege in response to questions suggests ) he did not actually consult with a lawyer before deciding to cite the attorney client privilege, and 2) he has something to hide.

The thing about lawsuits and making stuff up is you just cannot predict how things will turn out. Pres. Trump has been sued by the James Madison Project, an intelligence watchdog group, and Politico seeking documents related to his tweets that are in turn related to Russia. In James Madison Project v. Dept. of Justice, DOJ argued that the tweets are public statements, “official” statements of the President. One or more of his tweets claimed the Steele dossier was “discredited.” So, the James Madison Project and Politco are seeking whatever documents support the claim that the dossier was “discredited.”

Yet, in another case, some twitter users have sued the President for blocking them. They seek the right to reply to his tweets. He does not like their comments, so he has blocked them on his twitter account. Those twitter users have sued the President and Twitter to become unblocked. (Only in 2017 would we have a lawsuit requesting a government official to “unblock” them). Their point is that if these were traditional public statements, they could indeed react or ask questions. So, they argue that his tweets are a public forum.

In this second lawsuit, known as Knight First Amendment Institute at Columbia Univ. v. Trump, DOJ has argued that yes, while the tweets are official statements, they are also “personal conduct that is not an exercise of state power.” DOJ has moved for summary judgment, arguing that the tweets are maybe not so official, after all. In its motion for summary judgment, the DOJ argued, “To be sure, the President’s account identifies his office, and his tweets make official statements about the policies of his administration.” “But the fact that the President may ‘announce the actions of state’ through his Twitter account does not mean that all actions related to that account are attributable to the state.” In the legal business, we call that double speak. It is also considered a “judicial admission” when a person contradicts himself in one lawsuit, as opposed to another lawsuit. The President tried one lie or exaggeration in one case and found he had to adjust his “story” a bit for a second, different lawsuit. Both sides in this lawsuit have moved for summary judgment. See ABA Bar Journalreport.

And, of course, just last weekend, Pres. Trump tweeted that he fired James Comey because Mike Flynn lied to the FBI. That tweet suggested Pres. Trump knew Mr. Flynn was obstructing justice weeks before the President fired him. So, when Pres. Trump fired Mr. Comey, he may have done so to help LTG(R) Flynn. And, now, Pres. Trump’s lawyer, John Dowd, claims he wrote the tweet. That claim will surely lead to the need to further adjust the “story” that the President’s tweets are “official.” Why would a personal lawyer be drafting “official” statements for the President? What regulations or statutes will that violate? The problem with creating a “story” for one’s defense is that keeping that story straight is very challenging.

That is why in employment cases, the employer’s articulated reason for firing an employee is so critical. If the employer does not know why someone was fired, then no one knows. Or, in this case, if the the President does not know what his tweets are, then it may well be that no one knows.

Employment cases are difficult for the employee. I have mentioned a couple of studies about the success rates for employment cases. See my prior posts here and here. Now, we have another study. In Rights on Trial: How Workplace Discrimination Perpetuates Inequality, the authors went to federal records and interviewed individual plaintiffs to study how well discrimination lawsuits achieve the simple aim of rectifying discrimination in the workplace. The authors included Ellen Berrey, professor of sociology, Robert L. Nelson, research chair in the legal profession and professor of sociology, and Laura Beth Nielsen, professor of sociology.

This study looked at not just reported cases, or cases that went to trial, but tried to review the gamut of cases, those that settled early and even some that did not see a lawsuit filed. The study focused on disability, sex, race and age cases. It studied four central steps in any lawsuit, dismissal, early settlement, late settlement and trial. The authors interviewed plaintiffs and their lawyers.

It found the filing of discrimination lawsuits is on the decline. Discrimination filings have decreased from high of 23,725 such lawsuits in 1998 to only 13,831 in 2014.

They found some 36% of such cases were dismissed or thrown out of court on summary judgment. 50% of plaintiffs settled for an average of $30,000. The median settlement amount was $30,000. Rights, at p. 4. Only 6 percent of cases filed resulted in trial. Among those trials, only 33% resulted in a win for the plaintiff.

Apart from cold numbers, the authors found the plaintiffs paid a high emotional cost for his/her lawsuit. They generally faced ostracism from management and co-workers alike. Many plaintiffs reported depression, alcoholism and divorce in the wake of their lawsuits. Many hoped to get their jobs back. That almost never happens. That finding certainly jibes with my experience.

The study also found that employment lawyers typically accept one in ten of the cases that cross their desks. That does sound right. That screening process unfortunately works against plaintiffs with fewer resources and against African-Americans. African-American plaintiffs were less likely to find lawyers willing to accept their case. That lack of representation means they were more likely have their cases dismissed.

The EEOC employs codes to identify early on which filings are more likely to result in findings f discrimination. It is a triage system designed to identify the cases where the EEOC can have the greatest effect. The authors compared those early factors to eventual outcomes and found the EEOC analysis was not accurate. The EEOC priority codes had no apparent relationship to the actual outcomes, found the authors.

The highest number of cases filed included race discrimination at 40%. Sex discrimination wa next at 37%. Then came age (22%) and disability (20%). See ABA Bar Journal report about the book here.

I will discuss later their observations about looking for lawyers and how well that process works.

Filing suit in federal court is different. Federal court differs from state court in some key respects. One of these respects concerns attorney withdrawal. In state court, most judges would quickly grant a motion to withdraw. Not so in federal court. In GDC Technics, Ltd. v. Grace, No. 15-CV-488-ML, the Defendant’s counsel asked to withdraw. The motion to withdraw indicates the law firm would suffer financial hardship if the motion was not granted. That assertion suggests the firm was not being paid by the Defendant. The Plaintiff opposed the motion because 1) the trial date was about two months away, and 2) there was a corporate co-Defendant. J.R.G. Design, Inc. cannot appear in court without an attorney. Since Mr. Grace has not paid his current lawyer, argued the Plaintiff, then it is unlikely he would find a new lawyer. Thus, the corporate Defendant would have to be dismissed from the lawsuit, or a default judgment would have to be entered against it.

The Judge agreed. In a Feb. 10, 2017 decision, the court found that if granted, the status of the corporate defendant would be very problematic. Mr. Greace himself could appear in court pro se, but the corporate defendant could not. The court noted the law firm had represented the Defendant for well over a year. It seemed unlikely that the Defendant would be able to hire new counsel now.

A couple of months later, the same law firm, the Snell Law Firm, asked again to withdraw, citing some $44,000 in unpaid bills. The law firm noted that the client appeared to have funds with which to hire new counsel. The claims against Mr. Grace had been dismissed. The only remaining Defendant was J.R.G. Design. And, noted the Snell law firm, the parties had entered into a Joint Notice of Settlement. All the corporate Defendant had to do was settle the case. And again, the Plaintiff opposed the motion. The Court agreed with the Plaintiff. Finalizing a settlement agreement and transferring the disputed property would not require much time from the law firm. The Court did note that the conduct of Mr. Grace did appear to have caused additional work for his lawyers. So, if the remaining work became too much, the Court agreed it would re-hear the motion to withdraw. The Court noted that the Plaintiff had filed a motion seeking sanctions due to conduct of Mr. Grace. The Court seemed to be signaling its willingness to release the law firm if Mr. Grace mis-behaved.

That is the different between state and federal court. Bad behavior will have consequences much sooner in federal court. Another lesson appears in this decision, playing nice counts in lawsuits.

Donald Trump’s campaign rally in Louisville, Kentucky in 2016 is again in the news. As I have mentioned here previously here and here, the President and his campaign have been sued for roughing up protesters at that rally. One of the defendants with the President is Mathew Heimbach, a white nationalist. He is chairman of the Traditionalist Worker Party in Indiana. He was charged with assault for his actions at that campaign rally. He plead a form of “no contest” to a charge of disorderly conduct. See CBS news report.The Traditionalist Worker Party describes itself as “fighting” to secure the future of white children. As part of his plea deal, Mr. Heimbach was ordered to attend anger management classes, a suspended jail sentence and ordered to pay a fine.

In the civil lawsuit against Mr. trump. Mr. Heimbach has claimed he was indeed encouraged by Mr. Trump to rough protesters up.

Some folks refer to the President as the Twitter-in-Chief. Well, he should also be considered as the Litigator-in-Chief. He tossed out provocative statements at campaign rallies like they were candy. At one rally in Louisville, he exhorted his supporters to rough up a couple of protesters. He also added, as the protesters were being forced to leave, “Don’t hurt ’em. Don’t hurt ’em.” Now, those protesters have sued the President and his campaign for encouraging violence. The U.S. District Judge hearing the matter denied a motion to dismiss a few months ago. I previously wrote about this lawsuit here.

Pres. Trump’s attorneys offered creative, if weak arguments, as his lawyers often do. They argued then Candidate Trump was engaging in his First Amendment rights. It was free speech, they argued. The lawyers also argued that Mr. Trump did not encourage violence. He did, after all, encourage the supporters not to harm the protesters. The judge rejected those arguments when he denied the motion to dismiss.

Now, the issue before the court is whether Mr. Trump should appear for a deposition. The President’s lawyers claim his words are clear and do not need explanation. But, in arguing his words have clear meaning, they make a deposition very likely. His words do not have clear meaning. In one passage, he exhorted violence. In a separate set of words he asked them not to harm the protesters. No, his meaning was not clear. In any normal lawsuit, absolutely, Mr. Trump would be deposed. The Litigator-in-Chief has dug his hole. He said things he should not have said, at a time when he should not have said them. People like that often end up in a lawsuit. That is partly why he spent over $500,000 in legal fees in the second quarter of 2017 and almost $200,000 in the first quarter of the year. See Politico news report.

Success rates for plaintiffs in federal court have dropped dramatically from the 1980’s. In a study by two University of Connecticut law professors, they reported a success rate of 70% for plaintiffs in federal court in the mid 1980’s. The study looked at adjudicated civil cases of all types. That rate dropped to about 35% by 1995 and stayed in that range through 2009. The professors cannot explain the large drop. They did note that federal government suits for overpayment of veterans benefits mostly disappeared from the docket by 2009 and those suits were generally sure wins for the plaintiff. Otherwise, they could discern no pattern that might explain the large drop. The researchers discounted some possible theories, that poorer cases were being filed for the time period; that more weak sorts of lawsuits were being filed, such as prisoner cases; and that rise in dispositive motions caused more losses for the plaintiffs. The professors explained that if the dispositive motion theory caused this effect, then the plaintiff success rate should increase. Since, winning at summary judgment would be considered an adjudicated victory for the plaintiff.

The professors theorize that the success rate might relate to certain federal judges. That theory is problematical itself. It would be hard to envision a scenario in which federal judges become hostile to plaintiffs for ten years and then relent. But, even so, there is no way at present to determine if what might have caused such a large drop. See ABA Bar Journal report here. The paper, “The Curious Incident of the Falling Win Rate,” is available here.

In litigation, social media has become a very hot issue. Many parties think they can obtain that final, critical piece of evidence from social media. One example is Facebook. Many employers involved in a lawsuit request the employee’s Facebook posts for a certain time period. The rationale is that a victim of discrimination cannot legitimately claim to be depressed if he posts pictures of himself drinking a cool one at the local pub. Or, some defendants will argue, if the plaintiff posts something about being upset with his family or pet dog, then the employer can use that post to argue he was upset about things other than being fired.

Isiah Lester was involved in a wreck when a truck owned by Allied Concrete Company swerved into his lane and inflicted multiple injuries to him. The collision killed his wife. Mr. Lester sued. Trial was held and Isiah Lester was awarded $6.2 million. His wife’s parents were awarded money, as well. Sometime after the collision but before trial, Mr. Lester posted a picture of himself on Facebook. In the picture, he is wearing a shirt saying, “I love hot moms” and drinking a beer.

Later, after trial, the defendant apparently learned about Mr. Lester’s Facebook account. The defendant, Allied Concrete Company, sued Mr. Lester and his lawyer for among other things, spoliation of evidence. The next day, the plaintiff’s lawyer told his paralegal to tell Mr. Lester to “clean up” his Facebook page. The paralegal emailed the Mr. Lester, asked him about the picture, and told him to delete other pictures. The plaintiff avoided producing any information about the Facebook account. At Mr. Lester’s deposition, he was evasive. Facebook was still new in 2010 and 2011. Perhaps, they thought they could get away with trying to hide the account.

When the defendant pressed for the Facebook postings, the lawyer at first claimed the Facebook account did not exist. Mr. Lester deleted the account. Later, he re-activated the account, but did delete the pictures. The defendant subpoenaed the Facebook account records and eventually obtained all the pictures. The lawyer did not list the email to his paralegal in the privilege log. It looked like he was trying to hide that email from the Defendant. But, in the end, it was also uncovered.

The defendant sought sanctions. The court found that the plaintiff’s lawyer had intentionally omitted his paralegal’s email from the privilege log. The lawyer tried to blame the omission on the paralegal. The court found the plaintiff:

spoliated evidence by deleting his Facebook pictures,

tried to mislead the defendant by deactivating his Facebook account, and

lied in his deposition about deactivating his Facebook account.

The court sanctioned the plaintiff in the amount of $542,000 and his lawyer in the amount of $180,000. The award was tied to the defendant’s legal costs in pursing this information. The court referred the lawyer to the state bar for ethical violations. The court also referred the plaintiff to the prosecutor for his perjury in a civil matter.

This was the first case to sanction a party for trying to hide social media evidence. See the decision in Allied Concrete Co. v. Lester, 736 S.E.2d 699 (Va. 2013) here. The plaintiff and his lawyer went to a lot of trouble to hide the words of one t-shirt. It may well have turned out that he could have explained that t-shirt to the jury and assured them he was suffering emotionally when he drank that beer. Perhaps, that was his first social occasion since the accident. We will never know the full story. But, he and his lawyer made it much worse than it had to be.

In federal court, sanctions are a real possibility. The parties need to behave themselves and act in a professional manner. That even applies to a settlement conference. In Chen v. Marvel Food Services, Inc., No. CV-15-6206 (E.D. N.Y. 11/21/2016) (FLSA), the court scheduled a settlement conference. The parties were required to come to court and discuss settlement. Under the local rules, that means both parties had to comply with certain deadlines in submitting settlement offers and responses. The plaintiff submitted his settlement offer weeks prior to the conference. But, minutes before the conference was to start in court, the plaintiff doubled his settlement demand. He explained that he had re-evaluated his case. The defendant was unable to proceed with the conference because he had come with authority to settle based on the prior amount.

The Defendant filed a motion for sanctions. The plaintiff did not oppose the motion, but he did move to strike the motion because it contained the prior settlement demands. The plaintiff argued that the motion for sanctions contained confidential information. The court denied the motion to strike. The court noted this was an action based on the Fair Labor Standards Act. Therefore, the ultimate settlement amount was not confidential. The court then found that in doubling his settlement demand just minutes before the conference was to start, the plaintiff acted in bad faith. It sanctioned the plaintiff $1,000, which were the expenses of the defendant’s lawyer for that day. See the decision here.